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by Anthony Guidice
My wife and I were shopping for shoes one day. She walks over to me with a pair of black slip-ons. They're on sale, she says, and they're her size; but they feel a little tight. "They'll probably loosen up as I wear them," she says. Luckily, she always listens to me about clothes. "Probably not," I say. "Is there anything similar that fits?" She takes me over to a full-priced pair from a name-brand manufacturer. These are nicer, a little simpler design, and the leather is softer. "How do you like these?" "Oh, I love them," she says, "and they fit fine, but they cost three times as much."
I told her to get the expensive pair. If she buys the sale item, she'll wear them maybe three or four times at the most. They'll pinch and hurt, and after the brief glow of the cheap price dims, she'll put them in the closet. They'll sit there for about five years, and then she'll throw them away. However much she pays for them, she's paying a lot of money for a lousy pair of shoes. But, if she buys the quality item that fits well, she may wear them two or three times a week - for years. For the number of times she wears them, their eventual cost will be pennies.
So it is with The Consular Posts Book from ILW. At $499 it's not "cheap" but the cost is low. You'll use the ILW book and it will help you practice law. It's full of concrete and specific practice tools. If you specialize in Immigration Law, eventually you'll need it and use it (and if you dabble in immigration law from time to time, you're committing borderline malpractice - nothing will help you). Effectively help one client by having the ILW book, and the $499 price is cheap. It's chicken feed. Why? Because by having it, you'll be a better lawyer: better equipped with better tools, and less likely to miss something (not because your fee can be higher, dummy). Or you can buy the poorly realized and less expensive - cheap - Consular Practice Handbook. That'll end up costing you plenty because its usefulness is limited. That's a gentle way of phrasing it. The Italians say, "He who travels to Rome a fool will return a fool."
AILA's Consular Practice Handbook: Well, It Isn't Really…
I have this book. It's 750 pages, and has a slick-looking cover. You might place it on the front corner of your desk to impress clients… I don't mean to be harsh, but it has limited application. If an impatient and serious lawyer were to be blunt, she might say the book is rubbish. The book doesn't have much focus. It's a collection of articles. Some of them are reprinted articles I think. The problem is that too many of these articles are neither practice tools, nor broad overviews of Consular Processing. Some seem to be "agenda driven" - written for the sake of an article having been written so the lawyer can list it on his resume. The book's objective seems to be stuffing somewhat-related articles into a volume just to have a volume. The binding is nice though; none of the pages fall out…
Drab Writing
Too many of these articles are written in a terribly tedious and circumlocutory fashion: far too much verb "to be" usage, buried verbs, passive voice, and deadening prepositional phrases. Sometimes that kind of writing can be forgiven (sometimes, even though it wears you out) because there may be a gem or two to mine from all tons of dirt you move. But here, most often, there aren't enough gems within the acres of dirt. Here's an example:
"Despite the clear mandate of the FAM regarding adjudication of all NIV applications, the State Department has previously acknowledged, and lawyers continue to experience, instances where consular officers will decline to adjudicate an NIV application." [1]Huh? What was that again? Forty-three words about something pretty simple, and you may have to read it a few times to understand it. There may be something useful in this article, but you may have to slash through an Indochina jungle to access it. How about writing it so that someone can read it?
…viz:
"Though the Foreign Affairs Manual (FAM) dictates that a Consular Officer must process non-immigrant visa (NIV) applications, often it doesn't happen. The State Department admits as much."
You can understand that in one reading, in 27 words. And you'll also know what FAM and NIV means. I know many immigration lawyers are proud of this Captain Midnight Code Language they endlessly spout off in front of bewildered clients and other lawyers, but it usually does more harm than good, eh? This is just a guess, but it's probably a good idea to occasionally tip off what these cryptic letter groups mean. Is that an affirmative, Secret Agent 212?
I'm not terribly brilliant, just intolerant. I have an outrageous idea you should be considerate of the reader. And speak and write in plain English. Just an idea…
Another example:
"Notwithstanding the Visa Office instructions to consular officers to refrain from extensive interrogations and investigations of whether an applicant has acquired unlawful presence, good lawyering mandates that counsel send the client to a visa interview with strong evidence that the applicant has continuously maintained status since April 1, 1997, if such is the case.[2]"What? Huh? How about using plain English and a few less words? Maybe this:
"If applicable, conscientious attorneys should ensure that a client show proof of lawful status since 4/1/97. Although they're not supposed to, Consular Officers often delve deeply into unlawful presence history."Thirty words instead of fifty-four. Don't attorneys have to plod through enough written quicksand without having to do it in a reference book?
This happens often in AILA books; the writing is a verbose, impenetrable swampland.[3] Immigration Consequences of Criminal Activity[4] is another example (a helpful book, but downright trying to get through at times). Being able to understand a simple sentence while researching a topic shouldn't be laborious work, like reading the tax code. Many of these books could be half the number of pages. Sometimes I wonder if they aren't written just to have something thick and impressive to sell, rather than being of practical use to lawyers. To be fair to AILA, most legal writing is like this: bad. And when you're trying to research something under pressure, having to read this kind of stuff is maddening. Research manuals should be easy to read.[5]
Aside - What Is Well Written?
Interested in finding some beautifully written reference books? Maybe it's the water in California, but legal writing is just better out there - try ILRC in San Francisco: their books are focused, direct, easy to read and use. Judicial writing? - Ninth Circuit opinions are often a pleasure to read as well… a breath of fresh air. (Same as when I pick up a Supreme Court opinion and I see that Ginsburg has written it. I smile. "Ah, this will be enjoyable. Sometimes this job is a pleasure.") Remember what Garner says: "Good legal writing is just good writing.[6]
Questionable Usefulness
Many of these Consular Handbook articles don't specifically deal with Consular Processing. It's mentioned, but too often there's nothing specific regarding the Consulate. I don't know why some of the articles are even in the book. Examples are pieces on B-1 visas, Naturalization, Diversity Visas, etc. They're collaterally linked to consular processing, yes, but they could just as easily be in another collection book on Non Immigrant Visas, or Permanent Residence, or Naturalization. Only about 150 pages are articles directly related to Consular processing.
Aside from the articles, there's a lot of fluff in this book too, pages seemingly filled with material designed to make the book thicker. The update section is about 100 pages of filler, material any conscientious Immigration Lawyer might know anyway, just from checking his web postings or the US government websites. There is a recent CFR section that's about 70 pages; useful, but nothing you can't find in the codebook if you're researching a proximate question. There are Foreign Affairs Manual updates; also something you could find on a US government website.
There are six articles on consular offices for five countries: Mexico, Canada, China, Iran, Brazil, and India. Related, yes, but more parts of the stew. The appendix is fine, about 100 pages, with a section on personnel at individual consular posts.
"Hurry! Hurry! Hurry! - You There, Counselor! …Step Right Up and Win A Practice Manual For The Little Lady!"
The biggest sin this book commits is that it's neither a reference book, nor a broad overview of the subject. It's a never-never land of articles and information, all of it somewhat related to consular processing. Finding an answer to a specific inquiry will be hit or miss. And unless you're dealing with something like Adjustment of Status where the alien is in the US; or Removal Defense, just about any immigration law topic mentions a consulate at some point.
The book certainly isn't a "Consular Processing Handbook." It's a collection of related articles and information. That's fine, but for $200, you might expect something more closely resembling a research tool. I don't mean to sound overly critical of AILA. They're a good organization, and provide useful resources to immigration attorneys. But sometimes I feel like I'm at a carnival stand trying to throw a hoop around the milk bottle. Or at a used car lot: "Take 'er for a spin, Counselor - this little baby here is what consular processing is all about!"
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ILW's Consular Posts Book: More Than That - Something Of A Hornbook
This ILW does envelop the subject as a research book should. It's divided into three parts: the first is information about 18 actual consular posts; part two is devoted to theory and practice of consular practice; and part three is a CD-ROM with extensive reference material on it. This ILW book really is a Consular Practice Handbook. At 748 pages, it's a heavy, thick law book loaded with useful material. And that doesn't include what's on the CD-ROM, which is another book in itself.
Part I: Major Consular Posts
This section is valuable. Individual chapters cover 18 countries; there are four offices listed for China and three for India (two for Germany). Each chapter covers personnel, travel accommodations, local consular rules, hours, local hotels, travel times, scheduling information for different visa types, and more. The chapter on Jamaica is 11 pages; the chapter on tiny Haiti is seven.
I had an appointment with a new US client whose foreign national wife was refused a visa at a consular office. I needed to have some answers. To affirmatively attack the problem at USCIS, I needed some presumptive information; facts that I could assume might lie at the heart of the problem. And also, you can't just tell a client "I don't know," you have to have some idea. Not only because it eases the client's mind but also because it's competent legal practice. You just don't hurl innumerable possibilities at the government, and at the poor client! We don't get paid by the metric ton.
I reviewed the ILW book and the proofs in the visa application. The original application wasn't a model of thoroughness, but seemed workable enough. Using his answers to my initial questions, and a little research into a chapter covering his wife's specific country, I found a possible reason for the denial: suspicion of document and benefits fraud. Digging a little deeper at the meeting, the client admitted he'd made an omission on a support affidavit that almost certainly raised the Consulate's suspicions about the application. The omission related to benefits fraud. The book unraveled a pathway to a possible solution.
Would I have found that without this book? Maybe. But having the book gave me more confidence and a bit more direction. And even if I'd have found it without the ILW book, why take the chance? Immigration law is so complicated and so dizzying, that I'll take any advantage I can find. And consular practice such a never-never land in itself, I'll buy and use anything that bolsters my confidence and increases the odds of success. Imagine jeopardizing a client's chances because you didn't own the proper reference source.
Part II: Theory and Practice of Consular Work
This section is a series of 14 chapters. Each chapter deals with either a broad overview of a subject, or specific tips for attorneys regarding Consular issues. For example: Chapter three is on Trade and potential restrictions, including NAFTA, under Obama administration policy. Chapter five covers the Visa Waiver Program. Chapter two details potential attorney problems in international practice, and Chapter eight is about the consular duties in L-1 petitions. Chapter 14 is entitled "A Template for Attorney Risk-Assessment" (extremely useful), and Chapter 11 covers DOS name checks and security advisory opinions. The articles are specific to Consular work, and they're fully functional: either they pinpoint a specific area, like H-1b and L-1 data mining; or they give you a solid background, such as a complete chapter devoted to State Department name checks. Read the table of contents and see if you don't agree.
Writing Style - Better, Not Perfect
On the whole, the book is written in more of a straight-ahead tone that's reasonably comprehensible. The authors aren't trying to sound like they're spouting off on CNN or worse, trying to sound like lawyers - using 60 words to say what you could in eleven. Usually when lawyers do that, they arouse suspicions that they don't know what they're talking about. Thankfully the ILW book minimizes this - somewhat. Here are some examples:
"To adequately represent one's client and protect ones own reputation in this new regime, attorneys and corporate compliance officers now need to know the back office procedures of State Department and DHS investigators, not just the hours the business visa window is open at a US Consulate. " (Good - not perfect).Here's a complicated notion that's explained pretty well in two short paragraphs:
"One common misconception about Section 214(b) ineligibilities is that qualifying for a visa is just a matter of providing more documents. A visa decision is not simply based on documents, however. "Whether particular ties are strong enough to justify issuance of a visa differs from country to country, culture to culture, and from individual to individual. Our visa officers all have knowledge of local conditions and of patterns of migration to the United States to help them make this determination. " (Not perfect, but direct and understandable enough).(Not that all ILW books have always been written like this. The writing in the old Relief From Removal book was so garbled and convoluted, I remember throwing it at the wall once in complete frustration. A nearby paralegal was aghast. Pretty hearty book though… the binding held up.)
Part II of this ILW Consular book is clearly written for the most part; better than most legal reference books anyway... Most of the time you won't need to repeatedly re-read sentences and paragraphs to understand them.
Part II of the Consular Posts Book is satisfactory and workable. It has practice specific tips as well as general guidelines; including some rather chilling descriptions about recent US security procedures. Unlike the AILA "handbook" the ILW Consular Posts Book's Part II chapters have direction: they either target precise practice areas, or give an overall background on specific topics.
Part III: CD-ROM
The book is almost 750 pages long. Materials in the CD are additional. They aren't mere filler; they function as another toolbox to use with the book. The CD's table of contents alone is eight pages long.
Here's a list of the extensive relevant information sources on the CD:
- Statutes
- Regulations
- Foreign Affairs Manual
- Forms
- Executive Orders
- Department of Commerce
- Department of Homeland Security
- Department of Justice
- Department of Labor
- Department of Treasury
- Department of State
- Bureau of Labor Statistics
- Customs and Border Patrol
- Citizenship and Immigration Services
- Government Accountability Office
- Federal Bureau of Investigations
- Immigration and Customs Enforcement
- Internal Revenue Service
- The White House
- ILW.COM
- Miscellaneous
- Web Links
More than "standard" immigration law practice, much of consular practice is navigating uncertainty. Your job is to peer behind a thick, black curtain to try and understand the almost veiled government world behind it. To a certain extent in consular work, you prepare yourself as best you can and then faithfully apply the knowledge; somewhat like jumping off a cliff with pretty firm assurance that there's a net down there somewhere. Consular offices are really mini-monarchies: all-powerful US government outposts. So it's best to have all the ammunition you can when going up against them. With your head buried in a particular chapter of this book, you'll usually have the CD's contents up on your computer screen, clicking and scrolling thru labor statistics, applicable IRS info, or finding a proper form for a given task. It's reassuring, having the CD materials…
Not just gratuitous information, the CD materials buttress the content of the book. Yes, you can find a lot of it in the codebook, or on government websites. But ILW includes it as a convenience, not as part of the main course. And you can download the CD's content onto your hard drive, so it's always there.
Conclusion - The ILW Book is Less Expensive
I'm only an expert in my own opinion. But the AILA Consular book is substandard resource. It has no discernable direction or focus: it targets little about the specifics of consular practice; neither does it give any sort of thorough background for the subject. AILA assists plenty of immigration lawyers, including me; and they're a helpful policy presence in Washington. But quite a few people have opined that AILA is as much a perpetual marketing and cash-seeking mechanism as it is an association for lawyers. If you believe those people, then AILA's Consular Practice Handbook is a regrettable product of that machine. I must agree; AILA all too often does have a laser-sharp objective - of simply trying to sell something.
ILW's Consular Posts Book is a much better attempt to assemble a practice manual. Over half the book - Part I - is devoted to specific consular post information; Part II consists of both specific subject coverage, and general background information. Part III - the CD section - is thorough and well indexed. The ILW book is well designed and has direction. Everything in there has a precise function for a lawyer seeking something out about consular practice.
There is no straight pathway in this area. Consular practice is a difficult area to navigate. No one resource is enough because lawyers often make educated guesses. You need powerful tools for that work, because there are no maps that match this somewhat "secret" territory. But the best map there is seems to be ILW's Consular Posts Book. Without it you might very well miss something. It's a prudent investment because it's so useful. Ultimately it won't cost you much at all because you'll frequently have your nose in it. (And it has a very good binding also).
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Footnotes
[1]Consular Practice Handbook, AILA, 2012-13 Edition, p 174.
[2]AILA Consular Handbook, p 137.
[3]There are exceptions! - Kathrin Mautino, among others.
[4]Kramer, Immigration Consequences of Criminal Activity, 4th Edition, AILA, 2009.
[5]Don't believe me? - ask Brian Garner.
[6]LawProse seminar, Spring 2008, Cleveland, Ohio. For more on this fine organization, see here
About The Author
Anthony Guidice practices Immigration Law in Rochester, NY. He can be reached at 585/478-0555; e-mail him at a.guidice@yahoo.com .
